The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the defendant's motion to dismiss the indictment against him. The Court heard oral argument on this motion on February 18, 2011, and took it under advisement. Upon consideration of the parties' papers, the oral arguments presented by counsel, the relevant legal authorities, and the entire record in this case, the Court will deny the defendant's motion to dismiss.*fn1
On November 23, 1999, following a non-jury trial in the Superior Court of the District of Columbia, defendant Anthony T. Ross was convicted of one count of misdemeanor sexual abuse. Mr. Ross, at the time of his offense a thirty-year-old teacher at Archbishop High School in Washington, D.C., was found to have engaged in sexual relations with a fifteen-year-old student. Opp. at 1; see Mot. at 1. Mr. Ross was sentenced to a term of 180 daysf in jail, the execution of which was suspended except for 120 days of work release, followed by eighteen months of probation. Opp. at 1; Mot. at 1. Furthermore, under District of Columbia law, Mr. Ross was required to register as a sex offender for a period of ten years following his release. Mot. at 1 (citing D.C. Code § 22-4001); see Opp. at 1.
On the date of his conviction, Mr. Ross was provided with a "Certification of Sex Offender And Notice Order" that stated: "YOU ARE HEREBY GIVEN NOTICE THAT pursuant to the Sex Offender Registration Emergency Act of 1999 . . . you are certified by this Court as a SEX OFFENDER." Opp. at 1-2 (emphasis in original). On December 13, 2000, Mr. Ross signed a notice of his duty to register as a sex offender for ten years, expressly acknowledging the following:
I understand that I have a duty to report 1) any changes of home, work or school addresses; 2) any change in motor vehicle information, or 3) any significant changes in physical appearance to the Agency within 3 days. Changes in registration information must be provided to CSOSA Sex Offender Registration Office . . . . I am also obligated to provide verification of registration information to the Agency, upon request, which will be at internals no greater than quarterly if my classification is A or annually if my classification is B or C.
Id. at 2 (emphasis in original). Mr. Ross' sex offender classification was within the "B" category, thereby requiring annual verification of registration. Id.
On January 18, 2002, February 26, 2003, and September 29, 2006, Mr. Ross signed "Sex Offender Verification Forms." Opp. at 2. He apparently did not sign such forms in calendar years 2004 and 2005. These forms stated the following:
The D.C. Sex Offender Registration Act mandates that every person convicted of a sexually violent offense, shall register with the Court Services and Offender Supervision Agency and verify relevant information every three months. Every other sex offender must register and provide verification on an annual basis.
Id. Directly above Mr. Ross' signature on each of these forms was the following attestation: "I certify the information provided on this form is complete and accurate and I am aware of my responsibility to provide notice to the Court Services and Offender Supervision Agency within 3 days of changing my address or other registration information." Id.
Sometime between January 2009 and September 2010, Mr. Ross moved from the District of Columbia to Ohio. See Opp. at 2; Indictment at 1. The government alleges that Mr. Ross neither notified the District of Columbia of his move, nor registered as a sex offender in Ohio. Opp. at 2. The government further alleges that Mr. Ross used a false date of birth and a false social security number while in Ohio, in order to hide the fact that he was a convicted sex offender. Id. at 2-3.
On October 7, 2010, a grand jury in the District of Columbia returned a one count indictment against Mr. Ross, charging him with the failure to register under the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901 et seq., in violation of 18 U.S.C. § 2250(a). Indictment at 1. The Indictment charges activity in violation of SORNA "[b]etween on or about January 2009 and on or about September 2010, within the District of Columbia and elsewhere . . . ." Id. Mr. Ross was arrested two days after the return of his indictment, on October 9, 2010, in Ohio. Opp. at 3.
Mr. Ross now moves to dismiss the Indictment on eight separate grounds. First, Mr. Ross asserts that the Attorney General's interim regulation, 28 C.F.R. § 72.3, which states that SORNA applies retroactively to offenders such as Mr. Ross whose qualifying offense was committed prior to SORNA's enactment, was issued in violation of the Administrative Procedure Act ("APA"). Mot. at 3. Second, Mr. Ross asserts that he was "unable" to register under SORNA because he was unable to register under existing District of Columbia law. Id. Third, Mr. Ross asserts that SORNA is not applicable to him because the District of Columbia has yet to implement SORNA. Id. Fourth, Mr. Ross asserts that SORNA is not applicable to him because he was "unable" to "initially register" under SORNA. Id. at 4. Fifth, Mr. Ross asserts that Congress improperly delegated the legislative function of determining the retroactivity of SORNA to the Attorney General, in violation of the non-delegation doctrine. Id. Sixth, Mr. Ross asserts that retroactive application of SORNA violates the Ex Post Facto Clause. Id. Seventh, Mr. Ross asserts that application of SORNA to him violates the Due Process Clause.
Id. And eighth, Mr. Ross asserts that SORNA is an unlawful exercise of federal power under the Commerce Clause. Id.
A. The Statute, the Interim Regulation, the Preliminary and Final SMART Guidelines, and the Final Rule
"Since 1994, federal law has required States, as a condition for the receipt of certain law enforcement funds, to maintain federally compliant systems for sex-offender registration and community notification." Carr v. United States, 130 S. Ct. 2229, 2232 (2010). "In an effort to make these state schemes more comprehensive, uniform, and effective, Congress in 2006 enacted [SORNA] as part of the Adam Walsh Child Protection and Safety Act, PUB. L. NO. 109-248, TIT. I, 120 STAT. 590." Id.; see 42 U.S.C. § 16901 (Congress enacted SORNA to "establish a comprehensive national system for the registration of [sex] offenders . . . .").
Section 16913 of Title 42 provides, in relevant part, that "[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student." 42 U.S.C. § 16913(a). As part of "[k]eeping the registration current," a sex offender "shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) . . . and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry." Id. § 16913(c). In addition, Section 16913 provides the requirements for sex offenders registering for the first time. See id. § 16913(b). And Section 16913 further provides that [t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before [the enactment of SORNA on July 27, 2006] or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section [the initial registration provision].
It is a federal criminal offense to violate SORNA's registration requirements. Carr v. United States, 130 S. Ct. at 2232; see 18 U.S.C. § 2250(a). Any person who (1) "is required to register under [SORNA]," (2) "travels in interstate or foreign commerce," and (3) "knowingly fails to register or update a registration as required by [SORNA]," shall be fined or imprisoned "not more than 10 years, or both." 18 U.S.C. § 2250(a); see United States v. Cotton, Criminal No. 10-0126, 2011 WL 180196, at *1 (D.D.C. Jan. 20, 2011).
SORNA was enacted, effective immediately, on July 27, 2006. United States v. Cotton, 2011 WL 180196, at *1. On February 28, 2007, the Attorney General issued an immediately effective interim regulation for the purpose of "specif[ying] the applicability of the requirements of [SORNA] to sex offenders convicted prior to the enactment of that Act."
28 C.F.R. § 72.1. This interim regulation expressly states that SORNA applies "to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." 28 C.F.R. § 72.3. In other words, under this regulation, SORNA applies retroactively to sex offenders with pre-SORNA convictions like Mr. Ross.
See id. In promulgating this regulation, the Attorney General "did not provide notice of proposed rulemaking, 5 U.S.C. § 553(b), or allow a 30-day [comment] period before the rule became effective, 5 U.S.C. § 553(d), as required by the [APA]." United States v. Cotton, 2011 WL 180196, at *2. "Instead, he invoked the 'good cause' exception of the APA for these requirements." Id. (citing 5 U.S.C. § 553(b)(3)(B) & (d)(3); 72 Fed. Reg. 8894, 8896-97 (2007)).
Three months later, on May 30, 2007, the Attorney General published proposed comprehensive guidelines for SORNA, referred to as the "SMART" guidelines after the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. See 72 Fed. Reg. 30,210 (May 30, 2007). These preliminary SMART guidelines also state that SORNA applies retroactively:
The applicability of the SORNA requirements is not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction's implementation of a conforming registration program. Rather, SORNA's requirements apply to all sex offenders, including those whose convictions predate the enactment of the Act. Id. at 30,212. Comments ...